July 7, 2010

In the State of Wisconsin, a trial by jury is "wholly unprecedented" where a defendant is unsuccessful in obtaining summary judgment, advises the Milwaukee Journal-Sentinel's top legal analyst Patrick McIlheran. (Yes, Mr. McIlheran actually works for a real newspaper, which just might be the longest running comedy routine in town.)

To be fair, McIlheran's risible cluelessness is not germane to his "point," which is that local activist Mike McCabe's pronouncements are often consistent with liberal objectives. No shite, Sherlock.

* Civil procedure: A motion for summary judgment is filed by a party in a lawsuit in order to avoid going to trial, arguing that there is no "genuine issue" of fact that would require the impaneling of a jury to determine. If the movant fails to win his motion — and in the present case the movant is Michael Gableman, who failed to win his motion — then the case continues toward trial. What truly would be "wholly unprecedented" is the award-winning Patrick McIlheran delivering either an informed or an intelligent comment about the legal system.

No word yet on the Journal-Sentinel moving P. McIlheran's column to the entertainment section, which would be wholly precedented.

He doesn't have it wrong. A reference to horn book Civil Procedure does not cut it here. You have to read 757.87(1) which requires that the Commission vote to request a jury before filing the complaint. Even if you think, for some reason, that this language can be ignored, the fact remains that half of the six who can sit on this case think that it can't and so there can presumably never be acceptance of a recommendation based on a jury trial. Those three believe the Commission has no authority to request one.

And obviously you are aware that McIlheran's claiming that a jury trial taking place following an unsuccessful motion for summary judgment is "wholly unprecedented" is laughable.

There remains unresolved whether the rules of civil procedure, which the statutes say govern the matter at this point and according to which an unsuccessful demand for summary judgment places the matter in trial posture, supersede the Commission's decision to select the panel rather than the jury at the outset.